Can Three Year Olds Represent Themselves in Immigration Court?

Contributed by Amber L. Weeks

In an official deposition as a Department of Justice witness, a senior immigration judge ludicrously claimed, “I’ve taught immigration law literally to three year olds and four year olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.”[1] Surely he misspoke, right? But he said it a second time, reiterating, “Using the example that I mentioned, could I explain immigration concepts to a preschool class of three year olds and four year olds? Yes, but it took me a long, long time to do it.”[2] Surely, he would change his mind after a recess, right? But he repeated himself a third time, stating, “I’ve told you I have trained three year olds and four year olds in immigration law. You can do a fair hearing. It’s going to take you a lot of time.”[3]

Even more ludicrous than a judge claiming that he has taught preschoolers to represent themselves in immigration court is the fact that he was speaking in his capacity as a witness of the Department of Justice under Fed. R. Civ. P. 30(b)(6).[4] As a Rule 30(b)(6) witness, the Department of Justice designated Assistant Chief Judge Jack H. Wiel “to testify on its behalf,” designating topics about which he would testify and requiring that he testify about information known or reasonably known to the Department of Justice. See Fed. R. Civ. P. 30(b)(6). Judge Wiel was presumably selected as a witness based upon his experience in training other judges and as the Acting Assistant Chief Immigration Judge for vulnerable populations, focusing on mental competence and children.[5] Throughout the deposition, Department of Justice counsel objected to questions that were outside of the scope of his testimony as a witness of the Department of Justice. However, despite the fact that objections were made to over 30 different topics, no objection was made when Judge Wiel claimed that three and four year olds could be taught immigration law in order to represent themselves in immigration court the first time, the second time, or even the third time after a recess. Pursuant to Rule 30(b)(6), the Department of Justice is accountable for these statements.

I happen to have a three year old daughter, so I interviewed her to test the theory of whether she could answer even the most basic questions to represent herself in immigration court. Where were you born? Where were your parents born? Where do you live? Where would you like to live? Not legal questions, but just basic questions that a kind and thoughtful judge would want to know before deporting a child. (See first video below.) Although hilarious, her candid answers are heart-wrenching when I consider where unrepresented children in immigration court will end up. Afterward, I taught my daughter the most important phrase in immigration court, which I suspect did not make the top ten list of important things that immigration judges teach three and four year olds. (See second video below.) The bottom line is that the Department of Justice needs to implement a system to ensure that all children in immigration court have counsel to help them figure out where they came from and how to get to a safe place to grow up.

[4]Id. at 7. Special thanks goes to Andrea Sáenz, Clinical Teaching Fellow, Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo School of Law, for pointing out that Judge Wiel made these statements in his capacity as a Rule 30(b)(6) witness who was literally speaking for the Department of Justice.

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